Altersgrenzen für Geschäftsführer – Bundesgerichtshof bringt AGG ins Spiel!

Employment contracts of managing directors often contain age limit regulations, according to which the employment relationship does not end when the statutory retirement age is reached (so-called “standard retirement age”), but rather at an earlier point in time. This can either be an age limit freely chosen by society (e.g. “completion of the 62nd year of life”), or the age limit “completion of the 65th year of life”, which at that time still corresponded to the statutory standard age limit was gradually increased from 65 years to 67 years.
Prompted by some ECJ decisions on the status of external managers as “employees” within the meaning of the definition of employee under EU law (e.g. “Danosa” – maternity protection policy, “Balkaya – collective dismissals directive”), such age limits in managing director service contracts are now increasingly being questioned.
One current decision of the BGH from March 26, 2019 (Ref.: II ZR 244/17) now gives reason to examine the existing service contracts of managing directors more closely to see whether the age limit regulations regulated therein are actually effective or how they should be interpreted if necessary. A distinction must be made between the two alternative regulations described above.
Interpretation of the age limit regulation
If the managing director's employment contract contains an age limit according to which the employment relationship should end when the managing director reaches the age of 65, this age limit is to be interpreted after the increase in the standard retirement age as a rule to mean that the employment relationship only ends with the completion of the period required for receiving a pension Standard old-age pension should end at the relevant age, at least if the employment contract was concluded before the RV Age Limit Adjustment Act came into force on January 1, 2008. This rule of interpretation, which was recently confirmed by the BAG for employees in the judgment of December 9, 2015 (case number: 7 AZR 68/14), can be transferred to managing director employment contracts. By using the phrase “completion of the age of 65”, the company generally only wanted to refer to the statutory standard age limit in force at the time, which was 65 years from 1916 until the RV Age Limit Adjustment Act came into force. A sensible third-party manager would also have to understand this phrase “completion of the age of 65” as a reference to the point at which the standard retirement age is reached.
If the managing director is covered by a pension from the statutory pension insurance, such an age limit based on reaching the standard retirement age is also objectively justified and is in no way discriminatory. This legal situation, which has also been confirmed by the BAG with regard to an employment relationship, must apply all the more to a corresponding age limit in a managing director's employment contract.
Violation of the regulations of the AGG?
However, should the regulation in the managing director's employment contract be interpreted as an independent limitation to the age of 65, regardless of whether the managing director can claim a pension due to old age from the statutory pension insurance at this point or not, which is particularly the case with newer employment contracts , or if an even earlier age limit was regulated in the contract (e.g. “completion of 62 years of age”), the question arises as to whether such a regulation is ineffective due to age discrimination according to Section 7 Paragraph 2 AGG.
Scope of the AGG
First of all, it should be noted that the temporal scope of application of the AGG, which came into force on August 18, 2006, also applies to age limits that were agreed in individual contracts before the AGG came into force, if the age limit is only reached after the AGG comes into force. Only if the age limit was reached before August 18, 2006 does the old law apply according to Section 33 I AGG.
According to established case law, the agreement to limit a contractual relationship is also a condition for dismissal according to Section 2 I No. 2 AGG. In addition to terminations, such conditions also include all other termination events. They refer to both the “whether” and the “how” of termination and thus also include the question of when the contractual relationship ends due to an agreed time limit (cf. BAG dated April 6, 2011 - 7 AZR 524/09 ).
However, until the BGH's decision of March 26, 2019 (ref.: II ZR 244/17), it was highly controversial in the literature whether this was the case at all personal scope of the General Equal Treatment Act is opened for an external manager. The applicability of the General Equal Treatment Act to the agreement of a dismissal condition between a GmbH and its external managing director does not already arise from Section 6 (3) AGG. According to Section 6 Paragraph 3 AGG, the provisions of Section 2 of the General Equal Treatment Act on the protection of employees from discrimination (Sections 6 to 18 AGG) apply accordingly to self-employed persons and board members, in particular managing directors and board members, insofar as the “Conditions for access to employment and career advancement”. Conditions of dismissal are not covered by the scope of application of Section 6 Paragraph 3 AGG (see BGH, judgment of April 23, 2012 - II ZR 163/10). Nothing different arises from an expanded interpretation of Section 6 (3) AGG that conforms to European law.
However, in its decision of March 26, 2019 (ref.: II ZR 244/17), the BGH has now decided that the external managing director of a GmbH, when interpreted in accordance with European law, is in this respect an “employee” within the meaning of Section 6 Paragraph 1 Sentence 1 No 1 AGG, how the material scope of application of the General Equal Treatment Act is opened via Section 2 Paragraph 1 No. 2 AGG in the event of termination of his management service contract. Since Directive 2000/78/EC in Article 3 Paragraph 1 c) aims to protect employees from discrimination through dismissal conditions as part of the working conditions, the General Equal Treatment Act has implemented the directive with the same content and the directive does not refer to the definition of employee under German law , the term “employee” in Section 6 Paragraph 1 No. 1 AGG should be interpreted under EU law, taking into account the ECJ’s case law on this matter. The directive and its implementation, the General Equal Treatment Act, aim to protect a wide range of people. This objective allows the external managing director of a GmbH to be viewed as an employee protected from discrimination by dismissal conditions within the meaning of Section 2 Paragraph 1 No. 2 AGG. The same must therefore also apply if the material scope of application of the General Equal Treatment Act is opened via Section 2 Paragraph 1 No. 2 AGG due to a condition of dismissal in the form of a limitation in the management service contract (maximum age limit).
Unequal treatment / justification
The limitation of an employment relationship, which is linked to reaching a certain age, fundamentally results in unequal treatment in terms of dismissal conditions based directly on the characteristic of age within the meaning of Sections 7 I, 3 I 1, 1 AGG.

10 S. 1 and S. 2 AGG, however, allow such different treatment based on age if it is objective and appropriate and justified by a legitimate aim and if the means to achieve this aim are appropriate and necessary. According to Section 10 S. 3 No. 5 AGG, permissible different treatment due to age can also include an agreement that provides for the termination of the employment relationship without notice at a time at which the employee can apply for a pension due to old age.

The ECJ has also fundamentally viewed age limits within the meaning of § 10 sentence 3 no. EC appear objective and reasonable and can be justified within the framework of national law. However, the use of the authorization in Section 10 Sentence 3 No. 5 AGG must, in an appropriate and necessary manner, pursue a legitimate aim within the meaning of Article 6 I of Directive 2000/78/EC (ECJ, ECLI:EU:C:2010:601 = Coll. 2010, I-9391 = NZA 2010, 1167 Rn. 53 – Rosenbladt).
That an age limit of 65 years or even earlier for a third-party manager who is not entitled to a retirement pension from the statutory pension insurance at this point in time pursues a legitimate aim and is appropriate in the sense. § 10 S. 1 and S. 2 AGG is, but will generally not be the case. In its decision of March 26, 2019, the Federal Court of Justice in its decision of March 26, 2019 did not consider the argument that the requirement profile for company managers is usually particularly high, which is why there is a need to agree on age limits below the statutory retirement age against the background of business and company-related interests, to be a legitimate aim viewed. Older people in particular can have particular strengths, especially professional experience as a result of many years of work, which make them particularly suitable for certain demanding tasks. It should be noted in this respect that the person who invokes the admissibility of different treatment based on age in a contractual agreement according to Section 10 AGG, i.e. the company, bears the burden of demonstrating and proving that the unequal treatment has a legitimate aim in mind of Section 10 Sentence 1 AGG is aimed at and that the means to achieve this goal are appropriate and necessary (BGH dated March 26, 2019, ibid).
A justification according to Section 10 Sentence 3 No. 5 AGG is generally not possible in these case constellations, as the early age limit agreement provides for the termination of the managing director's employment relationship without notice at a time when he cannot apply for a statutory pension due to old age. It has not yet been decided by the highest court whether the regulation in Section 10 Sentence 3 No. 5 AGG can be applied analogously, at least in cases in which the GmbH managing director is adequately covered by a company pension scheme or a transitional allowance, as is sometimes represented in the literature decided. The judgment of the Hamm Higher Regional Court (AZ: 8 U 18/17), in which such an analogous application of Section 10 Sentence 3 No. 5 AGG was affirmed, was overturned by the Federal Court of Justice without deciding on this legal question with regard to an age limit.
Conclusion
With the current decision of the Federal Court of Justice, it is now clarified that the General Equal Treatment Act (AGG) must also be observed for early departure regulations in managing director service contracts. This can have far-reaching consequences, especially with regard to the effectiveness of maximum age limits. The shareholders, but also the affected managing directors, are therefore well advised to examine the existing contracts as a precaution to see whether the exit regulations contained therein are AGG-compliant. Furthermore, attention should be paid to further developments in case law on the admissibility of age limits.